Unofficial Opinion 96-15

August 16, 1996

To:

State RepresentativeDistrict 15

Re:

Unless it has been formally discharged by court order, a grand jury may recess and reconvene as it sees fit to conduct business during the term of court, and may investigate the operation of county offices by reasonably observing county officials in the performance of their duties.

This responds to your recent request for my unofficial opinion on several questions relating to the powers and duties of grand juries. Your first question is whether it is within the authority of the foreman of a grand jury to reconvene the grand jury to complete official business. The answer to this question is partially found in State v. Grace, 263 Ga. 220 (1993), wherein the Supreme Court held that: ". . . a grand jury properly summoned, sworn, and charged to serve during a particular term of the court, may recess and reconvene as it sees fit to conduct its business in the course of that term, and need not be resworn or recharged by the court during that term." Id. at 221. This holding stands for the proposition that the grand jury itself may establish its own schedule of activities. However, as indicated in footnote 5 of Grace, the grand jury is subject to being recalled by the court at any time during the term of court. Thus, it is clear that the court may override the grand jury's self established schedule in order to insure that the functions of the grand jury are properly carried out in a timely fashion.

As to the specific question of the authority of the foreman to "convene" the grand jury, it appears that in Georgia the duties of the foreman are "essentially ministerial" (Ingram v. State, 253 Ga. 622, 627 (1984)). A "ministerial act" is defined as one which a person performs "in a prescribed manner, in obedience to the mandate of legal authority, without regard to or the exercise of his own judgment upon the propriety of the act being done." Black's Law Dictionary 1190 (3rd ed. 1944). Thus, it is my opinion that while the foreman of the grand jury may facilitate the reconvening of the grand jury, it is the grand jury itself which retains the authority to establish its schedule of activities, subject, however, to judicial direction. Of course, the grand jury could agree that the foreman might be authorized to call a meeting of the grand jury after recess, but it does not appear that the foreman would have the authority on his own to establish the schedule, without assent by the grand jury.

Your next question is what is the proper process for reconvening a grand jury. The answer to this question depends upon whether the grand jury is in recess, or whether it has been formally discharged by court order. If the grand jury is merely in recess during the term of court for which it has been selected to serve, there is no specific statutory procedure for reconvening. Grand jury sessions are often scheduled by court order, or by the grand jury itself during initial or subsequent sessions. Moreover, assuming the foreman has been granted necessary authority, the grand jury might be reconvened upon notification by the foreman of the need for a specially called meeting.

Where it has been discharged by court order, the grand jury cannot reconvene without a court order. See State v. Grace, supra at 221, n.5 ("once it has been formally discharged from its duties by court order (following its presentments, for example) it could not reconvene absent court order")); Bird v, State, 142 Ga. 596 (1914).

Your next question relates to the authority of the court to discharge a grand jury where business remains to be completed, such as the completion of committee reports. The grand jury is a constituent part of the court, and is subject to the court's supervision and direction. See Wood v. State, 103 Ga. App. 305, 317 (1961); State v. Grace, supra. Under O.C.G.A. § 15-12-71(a), "The duties of a grand jury shall be confined to such matters and things as it is required to perform by the Constitution and laws or by order of any superior court judge of the superior court of the county." It is thus clear that the court embodied in the person of a superior court judge may determine that a particular grand jury has completed its duties and formally discharge it by court order. It is the court's decision to make, and it would not be appropriate to act contrary to the court's orders. If the grand jury determines additional work is needed after it has been discharged, it could, with the assistance of the district attorney, request the court for an order reconvening the grand jury so that the work might be completed.

Finally, you have inquired as to whether a grand jury has the right to investigate what it believes to be clear improprieties in the carrying out of a county officer's duties, and whether the grand jury may, without interfering, observe a county officer in the performance of his or her duties. Under O.C.G.A. § 15-12-71(b), grand juries are required to inspect and examine the offices and operations of the clerk of court, the judge of the probate court, and the county treasurer at least once every three years. If the office of the district attorney is located in the court where the grand jury is impanelled, the offices of the district attorney are to be examined at least once every three years. In addition, whenever eight or more members of the grand jury deem it necessary, a committee of its members may be appointed to inspect or investigate any county office or the office of any county officer, any court or court official, the county board of education, the county school superintendent or the records, accounts, property or "operations" of such county officials. O.C.G.A. § 15-12-71(b)(2). To perform these duties, grand juries or committees thereof are empowered to compel the attendance of witnesses and to hear evidence. O.C.G.A. § 15-12-71(c). It is my opinion that the authority thus granted to grand juries would encompass the power to observe, for a reasonable period of time and under reasonable circumstances, the actual operation of a specific county office. Grand jury members could not, however, interfere with the operation of the office or intervene in the running of the office by the officer charged with that responsibility.

The law places restrictions on the power of grand juries to investigate generally. See 1987 Op. Att'y Gen. U87-20. In the case of In re Hensley, 184 Ga. App. 625 (1987), the court noted that a grand jury has no right in the absence of specific statutory authority to file a report alleging misconduct in office on the part of a county officer, or impugning the character of such officer, except by presentment or true bill of indictment charging the individual with a specific offense. The Hensley court, quoting Thompson v. Macon-Bibb County Hosp. Auth., 246 Ga. 777, 778 (1980), stated:

"Under Kelley [v. Tanksley, 105 Ga. App. 65, 66 (1961)] . . . the only proper way to accuse an identifiable person with misconduct would be to return a presentment or an indictment. On the other hand, reports of a general nature concerning those areas where the grand jury has a statutory duty to investigate are acceptable."

Id. at 626. Thus, while the grand jury certainly may examine the affairs of county offices under its civil responsibilities, it can not conduct a generalized investigation into possible criminal misconduct of public officials, absent a proposed indictment or presentment. State v. Williams, 181 Ga. App. 204 (1986); In re Lester, 77 Ga. 143 (1886); 1987 Op. Att'y Gen. U87-20. The requirement of a proposed indictment or a presentment insures that any investigation by the grand jury is sufficiently defined and directed to meet the requirements of justice. The grand jury may, however, make fair reports concerning the operation of court offices, even though such reports may reflect negligence or incompetence on the part of the county officers involved.